SolGen seeks dismissal of petition vs. ML extension

MANILA -- The Office of the Solicitor General (OSG) on Monday asked the Supreme Court (SC) to dismiss the petition filed by opposition lawmakers assailing the constitutionality of the full-year extension of martial law in Mindanao.

In a 58-page comment, Solicitor General Jose Calida said the petition filed by the opposition lawmakers bloc, led by Albay Rep. Edcel Lagman, must be dismissed due to lack of merit, noting that it is imputing grave abuse of discretion by Congress in extending the effectivity of martial law in Mindanao.

Petitioners committed a terrible blunder. They failed to attach the adverted Joint Resolution of Congress upon which they pin their allegation of arbitrariness, Calida said.

Moreover, they trace the arbitrariness to the absence of an actual rebellion. Petitioners are unmindful that the Supreme Court already declared in Lagman v. Medialdea the existence of rebellion in Mindanao. Such fact is now beyond question, Calida said.

According to Calida, without any evidence to support the petitioners' general allegation that there is no factual basis to extend martial law in Mindanao, their claim that Congress acted contrary to the Constitution has no leg to stand on.

What the petitioners should have done is to show that the rebellion has been completely quelled. They have not done so, he noted.

Public safety inevitably requires the extension of the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus in Mindanao, Calida said. The danger and risks the DAESH-inspired DIWM, local terrorist groups, and the NPAs (New People's Army) pose still remain high and the extension of martial law will necessarily address the rebellion being waged by these groups, Calida added.

For as long as Congress believes that the invasion or rebellion continues to exist, and public safety requires it, the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus may be extended, subject only to the condition that any such extension be upon the initiative of the President and for a period to be determined by Congress, Calida said.

According to Calida, the issuance of an injunctive relief by the high court would unduly interfere with the congressional power to extend the declaration of martial law by the President.

Under the Constitution, the Congress, as the bastion of the people's representatives, has the power to extend or revoke such proclamation or extension, Calida said.

The Supreme Court may only review the factual basis thereof, which power is not even automatic, as it can only be exercised upon initiative of any concerned citizen. In the same breath, the Court cannot wield its power to issue injunctive relief to contravene the Commander-in-Chief powers granted to the Executive by the Constitution, the OSG noted.

Last Dec. 27, Lagman asked the high court to issue a temporary restraining order (TRO) or a writ of preliminary injunction to stop the implementation of the challenged re-extension pending adjudication of their petition.

In a 29-page petition, the lawmakers said there is "no actual rebellion in Mindanao" to justify the re-extension of martial rule in the southern region.

They also argued that the Constitution requires an actual state of rebellion, not just mere threats, for such proclamation of martial rule.

"Threats of violence and terrorism by remnants of vanquished terrorist groups do not constitute a constitutional basis for extension of martial law because imminent danger has been deleted as a ground for imposing martial law under the 1987 Constitution," the petitioners said.

The petitioners said President Rodrigo Duterte's request for martial law extension was approved "baselessly and with inordinate haste", noting that the period of deliberation and interpellation was "unduly constricted" by both the House and Senate leadership.

The petitioners also said the President has the power to call out the military to prevent and subdue lawlessness by remnants of terrorist groups without extending the martial law and the suspension of the writ of habeas corpus in Mindanao.

The petitioners likewise asked the SC to accord judicial notice to the joint approval by both Houses of the Congress of the re-extension because until now a copy of the enrolled joint resolution is not available.

On Dec. 13, a total of 240 members of Congress voted to approve to extend martial law in Mindanao, while only 27 voted against it. The approved extension will take effect beginning Jan. 1, 2018 until Dec. 31, 2018.

In December last year, the high court upheld with finality the constitutionality of President Duterte's declaration of martial law in Mindanao.

The SC's 82-page landmark decision, penned by Associate Justice Mariano Del Castillo, said that the 1987 Constitution grants Duterte the prerogative to put any part of the country under martial rule.

Another petition vs. ML filed

On Monday, the National Union of Peoples' Lawyers (NUPL) and party-list congressmen such as Carlos Zarate (Bayan Muna), Emmie De Jesus (Gabriela), Arlene Brosas (Gabriela), Ariel Casilao (Anakpawis), Antonio Tinio (ACT Teachers), and Sarah Elago (Kabataan) filed another petition asking the high court to issue a temporary restraining order (TRO) or a writ of preliminary injunction to stop the implementation of the martial law extension pending adjudication of their petition.

In a 34-page petition, petitioners urged the high court to conduct an open, inclusive, thorough judicial determination of the sufficiency of the factual basis for such extension.

The group wanted to know why the extension is longer than the original declaration when the fighting was still ongoing.

Is it not strange that the second extension is set for a period that is much longer than the period when fighting was still ongoing, there being no fighting in Marawi now? What are the parameters for setting the time frame? What would be the parameters for the possible earlier lifting of martial law? How will the AFP (Armed Forces of the Philippines) gauge their success? Or is this arbitrary or subjective and left entirely to the absolute discretion beyond the pale of legislative query or judicial review? Is Martial Law intended to quell a rebellion or is it just intended to restore public order and make government function again? If there are no parameters, then Martial Law can exist until there are rebels in Mindanao, even if such rebels do not pose a threat to public safety. These are nagging questions begging for satisfactory constitutional and factual answers, the petitioners stated.

Hence, by the government's own admission, there actually exists no factual nor legal basis to support the extension of martial law and the suspension of the privilege of the writ of habeas corpus in Mindanao � for a longer period than the original one at that - considering that the facts constituting the rebellion and threat to public safety in the assailed original proclamation, have already been resolved and no longer persist, the petition read.

Even in the letter forwarded by the President to both Houses of Congress citing the new alleged grounds that would warrant the extension, assuming without conceding that these are true, would still not logically and legally justify an extension because they do not rise to the level of rebellion that constitutes a threat to public safety as contemplated by the Constitution, it added.

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